Metz v. G. J. S. Realty Corp.

Appellate Terms of the Supreme Court of New York

Metz v. G. J. S. Realty Corp.

17 Misc. 2d 521, 183 N.Y.S.2d 908, 1959 N.Y. Misc. LEXIS 4471

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 22, 1959

StatusPublished

Cited by1 cases

This text of 17 Misc. 2d 521 (Metz v. G. J. S. Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Metz v. G. J. S. Realty Corp., 17 Misc. 2d 521, 183 N.Y.S.2d 908, 1959 N.Y. Misc. LEXIS 4471 (N.Y. Ct. App. 1959).

Pincite

Opinion

Per Curiam.

The defense designated as a “ Complete Defense ’ ’ herein is not one which completely defeats the cause of action. Since defendant has admitted an overcharge, although less than that claimed by plaintiff, the cause of action may not be dismissed for in any event plaintiff would at least be entitled to recover that amount. Nor does the tender of the check for $231.42 prior to the commencement of this action constitute a complete defense. The failure to accept the tender would serve only to deprive plaintiff of an award of statutory costs should there eventually be a recovery by plaintiff for no more than the amount of defendant’s offer.

It was error, therefore, to deny plaintiff’s motion to strike the “ Complete Defense ”.

The orders should be reversed, with $10 costs, and motion granted.

Concur — Hecht, J. P., Aurelio and Tilzer, JJ.

Orders reversed, etc.

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Per Curiam.

The defense designated as a “ Complete Defense ’ ’ herein is not one which completely defeats the cause of action. Since defendant has admitted an overcharge, although less than that claimed by plaintiff, the cause of action may not be dismissed for in any event plaintiff would at least be entitled to recover that amount. Nor does the tender of the check for $231.42 prior to the commencement of this action constitute a complete defense. The failure to accept the tender would serve only to deprive plaintiff of an award of statutory costs should there eventually be a recovery by plaintiff for no more than the amount of defendant’s offer.

It was error, therefore, to deny plaintiff’s motion to strike the “ Complete Defense ”.

The orders should be reversed, with $10 costs, and motion granted.

Concur — Hecht, J. P., Aurelio and Tilzer, JJ.

Orders reversed, etc.

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Bluebook (online)

17 Misc. 2d 521, 183 N.Y.S.2d 908, 1959 N.Y. Misc. LEXIS 4471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metz-v-g-j-s-realty-corp-nyappterm-1959.

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